 Mimosa NearPoint: Electronic Discovery for LITIGATION
Litigation Holds
Corporate litigation is a costly, time consuming proposition. There are several traps a company can fall into in the very early stages of litigation if it's not aware of its preservation duties and has an effective strategy to implement. One of the major risks is in ensuring that responsive record deletion has stopped when litigation is anticipated or pending. The rise of email as a universal business platform for both communications and transactions has made email and other collaboration related documents a prime target for electronic discovery (eDiscovery). Yet, due to the transitory nature of email and the distributed systems in which it resides, identifying the correct documents to hold and then ensuring the hold is placed presents a major challenge of organizations of all sizes.
Litigation Hold – What Is It?
A litigation hold or stop destruction request is a notice to persons within a company to stop the routine records retention destruction procedures for records that may be or are anticipated to be required in an upcoming legal proceeding. This order must alert employees as to the risk to the company and the employee if they fail to heed the litigation hold request. A litigation hold applies to all responsive records, documents, files, emails, both electronic and hardcopy which exist. In many companies, the email system is the largest repository of responsive records due to the nature of corporate email. Email messages can include business instructions, legal contracts, financial data, presentations, and unguarded opinions about many business related activities and is therefore a major target of discovery in litigation.
Stopping the destruction of Exchange email, including calendar entries, contacts and task lists, because of anticipated or pending litigation is an absolute must and very challenging. Companies around the world are experiencing a higher risk level based on increased litigation, more intrusive discovery requirements and legal strategies that take advantage of this difficulty. Recognizing and planning for these litigation holds and discovery can dramatically lower the adverse effects on your employees and lower your overall cost of legal defense.
The Intent and Expectation of the Litigation Hold (Stop Destruction)
Most corporate legal departments treat a litigation hold as a one-time communication (usually an email) to employees ordering that all information relating to specific content be held and protected for possible production in an anticipated or pending legal case. Many companies wrongly believe an email message to the employee base removes responsibility from the company. In most cases, this email is all the employees will ever see in reference to this request and is rarely officially removed at case settlement. This practice does not ensure all responsive email records are protected. For example, some employees could be behind in reviewing their incoming email and they may not actually read it for weeks. Some employees may be on the road and may not sync to their company email systems for days. Some employees may have reached their mailbox limit and not see the litigation hold message because their email box is refusing new email traffic. Of course, as cases often last for extended periods of time it's easy to see how even the most diligent employee could forget about a corporate communication sent months or years earlier.
A company's failure to quickly impose a litigation hold on all responsive records including Exchange email can result in court-ordered sanctions, including monetary sanctions and the imposition of adverse inference instructions relating to the information destroyed because an effective litigation hold was not put in place and refreshed in a timely manner.
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